Lawyers have criticised the government's highly anticipated guidance on dress codes and sex discrimination, dubbing it a ‘Janet and John’ guide that offers little in the way of hard and fast rules.
Late last week, the Government Equalities Office (GEO) published Dress codes and sex discrimination – what you need to know following calls from the women and equalities and petitions committees to produce further advice for employers on dress codes and anti-discrimination laws.
Describing it as a “Janet and John guide”, Beverley Sunderland, managing director at Crossland Employment Solicitors, said the advice suggested that the GEO did not know if employers understood or complied with anti-discrimination legislation while implementing dress codes.
“In fairness, the government’s new guide on dress codes and sex discrimination does say: ‘It is best to avoid gender prescriptive requirements; for example, the requirement to wear high heels. Any requirement to wear make-up, skirts, have manicured nails, certain hairstyles or specific types of hosiery is likely to be unlawful,’” Sunderland said.
“However, the use of the words ‘it is best to’ and ‘likely to be’ reinforces the view of the women and equalities committee, which spent a lot of time talking to those who do have a grasp on what employers understand – that the law was not clear enough.”
While she said the guidance was helpful, Vivienne Reeve, senior associate in employment and equalities at law firm Gowling WLG, told People Management that the guidelines failed in places to go beyond sex discrimination and consider issues like harassment and health concerns.
“Employers need to think about what they are trying to achieve and how they might accommodate for disabilities as well as for trans and non-binary individuals,” she added. “People are most productive when they feel most comfortable. There is no reason why they can’t look smart while feeling comfortable as well.”
Meanwhile, Blair Adams, partner and head of employment at Wedlake Bell, said employers needed to consider various factors when implementing a dress code: “The key thing is not to impose different standards on different groups without a good, non-discriminatory reason.”
Both Reeve and Adams recommended gathering employees’ opinions on dress codes informally, using either email or casual meetings, and allowing staff to raise any concerns they may have.
In January 2017, the women and equalities committee and petitions committee published their High heels and workplace dress codes report, which concluded that the law was unclear when it came to enforcing discrimination claims in cases where workers were asked to wear make-up or prescriptive items of footwear. The committee called on the government to produce proper guidance to help employers and employees understand anti-discrimination legislation.
The MPs’ interest was sparked by the case of Nicola Thorp, who was sent home from a role at PwC when she refused to wear high heels – a requirement of staffing agency Portico. A subsequent petition calling on the government to ban employers requiring women to wear high heels at work gained more than 150,000 signatures.
However, in April 2017, the government said the current law adequately protected women and instead recommended guidance to help employers understand the laws governing dress codes and gender discrimination.
Helen Jones, Labour MP for Warrington North and chair of the petitions committee, said the guide was a good first step but more work needed to be done for the advice to have a widespread effect.
“I am pleased that the government has accepted that it needs to do more to tackle discriminatory practices in the workplace,” Jones said. “There is now a great deal of work to be done to promote this guidance so that its message is heard by as wide an audience as possible.”